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TMI Blog2020 (6) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... as the third party. Appeal dismissed. - Justice S.J. Mukhopadhaya, Chairperson A.I.S. Cheema, Judicial Member And Kanthi Narahari, Technical Member For the Appellant : Vikram Singh Arya, Adv. For the Respondent : J. Manivannan, Adv. E. Omprakash, Sr. Adv., Ms. Madhusmita Bora and D. Sreenivasan, Advs. JUDGMENT JUSTICE S.J. MUKHOPADHAYA, CHAIRPERSON 1. In the 'Corporate Insolvency Resolution Process' of 'M/s. Oceanic Tropical Fruits Pvt. Ltd.'- ('Corporate Debtor'), 'M/s. B.R. Traders (one of the Appellants herein) filed Miscellaneous Application under section 60(5) of the Insolvency and Bankruptcy Code, 2016 ( I B Code for short) for direction to the 'Resolution Professional' and the members of the 'Committee of Creditors' to reconsider the 'Resolution Plan' submitted by the Resolution Applicant- 'M/s. B.R. Traders'. It was rejected by the Adjudicating Authority (National Company Law Tribunal), Single Bench, Chennai by impugned order dated 31st October, 2018, which is under challenge in Company Appeal (AT) (Insolvency) No. 189 of 2019. 2. 'M/s. K.K. Foods' (another Appellant) filed similar application under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a proposed consideration of ₹ 66,29,50,501/-. The said 'Resolution Plan' envisages payment mechanism for each of the stakeholders including statutory dues, payment to the 'Operational Creditors' etc. 7. The members of the 'Committee of Creditors' appeared before the Adjudicating Authority and taken specific plea that 'Information Memorandum' have several discrepancies as it did not capture the security structure properly in terms of ranking of charge as well as mixing the assets of the Company and personal guarantors. 8. The stand of the 'Committee of Creditors' is that market value of the assets of the 'Corporate Debtor' as well as the Promoters is ₹ 121.60 Crores excluding the non-core assets which 'Resolution Professional' failed to take into consideration and the liquidation value of the assets of the 'Corporate Debtor' as well as the Promoters is ₹ 89.10 Crores. In spite of the same, the 'Resolution Applicant'- 'M/s. B.R. Traders' quoted ₹ 66,29,50,501/- which being below the Liquidation Value is unacceptable. Case of 'M/s. K.K. Foods' 9. Similar plea has been tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Joseb Raj (Shareholder) 13. According to the counsel for the Shareholder of the 'Corporate Debtor', the Liquidation Value was obtained in an open process which is fundamentally not correct. 14. It was submitted that the 'Committee of Creditors' informed about the assets value of the 'Corporate Debtor' (Liquidation Value) at ₹ 89.10 Crores which is not based on assets of the 'Corporate Debtor' but includes the assets of guarantor and 3rd Party. 15. It was submitted that the Adjudicating Authority erred by overlooking the reason for non-consideration of the 'Resolution Plan' by the 'Committee of Creditors' and instead of directing compliance under the 'I B Code', has erroneously passed an order for liquidating the 'Corporate Debtor'. 16. We have noticed the object of the 'I B Code' as per which the 'Corporate Insolvency Resolution Process' is required to be completed in a time bound manner for maximisation of the value of the assets of the 'Corporate Debtor' and to promote entrepreneurship, availability of credit and balance the interests of all stakeholders including the 'Financial Cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the 'Corporate Debtor' as a going concern. 21. In regard to the alleged dues, the Appellant- 'Pepsico India Holdings Pvt. Ltd.' addressed a letter dated 22nd February, 2018 denied and disputed the alleged liability to pay a sum of ₹ 95,99,955/-. It was intimated that as per its undertaking, a sum of ₹ 24,34,314/- was payable by the Appellant- 'Pepsico India Holdings Pvt. Ltd.' to the 'Corporate Debtor'. On the other hand, the 'Corporate Debtor' was liable to pay a sum of ₹ 61,09,876/- to the Appellant in terms of the Agreement for the period between September, 2017 to November, 2017. 22. From the aforesaid fact, it is clear that the claim and counter claim by the 'Corporate Debtor' and the Appellant-'Pepsico India Holdings Pvt. Ltd.' till it is decided, the question of handing over any asset i.e. Plant Machinery to the Appellant does not arise. 23. It appears that the 'Corporate Debtor' was a plant and the Appellant has supplied Plant Machinery. Even during the liquidation process, the Liquidator is to ensure that the 'Corporate Debtor' remains a going concern. 24. As per the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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